United States District Court, D. Nebraska
D. THALKEN United States Magistrate Judge.
matter is before the court on Appleton Electric, LLC’s
(Appleton) Application for the Award of Costs and Fees
(Filing No. 33). Appleton seeks a determination of the
amount of an award previously granted for work completed in a
case filed by the plaintiff prior to this action. Appleton
filed an index of evidence (Filing No. 33) in support of the
application. In response, Rick Bremmer (Bremmer) filed a
brief (Filing No. 40). Appleton filed a brief (Filing No. 44)
action arises from an injury Bremmer sustained on May 25,
2011, when he delivered an order on behalf of Waste
Connections, Inc. (WCI) to Appleton on Appleton’s
premises. See Filing No. 1-1 Complaint p. 2. Bremmer fell
into an open pit after walking across a darkly lit warehouse.
Id. Bremmer alleges he suffered numerous injuries to
his shoulders and neck, needing multiple surgeries.
Id. Additionally, Bremmer alleges he suffers lost
wages, pain and suffering, and mental distress. Id.
Seeking redress from Appleton for these damages, Bremmer
filed this action on February 12, 2015, in the District Court
of Platte County, Nebraska. Id. at 1. Appleton
timely removed the case to this court on September 4, 2015.
See Filing No. 1 - Notice of Removal. Shortly after removal,
Appleton filed a motion to dismiss seeking dismissal of
Bremmer’s case based on the relationship between this
case and an earlier lawsuit. See Filing No. 6.
incident surrounding Bremmer’s injuries was previously
litigated in Waste Connections, Inc. v. Appleton
Electric, LLC, 8:12CV436 (the 2012 Lawsuit). Bremmer and
WCI filed the 2012 Lawsuit against Appleton and Emerson
Electric, LLC on September 18, 2012, in the District Court of
Platte County, Nebraska. See Filing No. 1-1, in Case
8:12CV436. Those defendants removed the matter to this court
on December 20, 2012. See Filing No. 1, in Case 8:12CV436. In
the complaint, WCI alleged it had paid and will continue to
pay workers’ compensation benefits to Bremmer. See
Filing No. 1-1 ¶ 22, in Case 8:12CV436. Both plaintiffs
alleged the defendants’ negligence caused
Bremmer’s injuries. Id. ¶¶ 18-21.
The defendants denied the plaintiffs’ allegations and
asserted the affirmative defenses of comparative negligence,
contributory negligence, and assumption of the risk. See
Filing No. 1-1 p. 8 - Answer ¶¶ 3-4, in Case
8:12CV436. The parties engaged in discovery and prepared the
case for trial. On November 26, 2013, Bremmer filed a motion
to dismiss his claims against the defendants, without
prejudice, stating, he “no longer wishes to pursue his
claim for loss of earning capacity and future medical in
conjunction with the employer.” See Filing No. 68, in
Case 8:12CV436. The defendants “[did] not oppose the
dismissal of Bremmer’s claims, [however they argued] .
. . voluntary dismissal, while without prejudice, should
include an award of costs . . . as a condition precedent to
his refilling [sic] of the claims.” See Filing No. 70 -
Response p. 1, in Case 8:12CV436. On December 20, 2013, the
court granted Bremmer’s motion, holding:
Bremmer’s claims against the defendants are dismissed
without prejudice, subject to the condition Bremmer must pay
the attorneys’ fees and costs reasonably incurred by
the defendants in defending Bremmer’s initial claims
before Bremmer refiles against either or both of the
See Filing No. 73, in Case 8:12CV436.
March 11, 2014, Bremmer moved to intervene, without payment
of fees and costs, and extend the progression deadlines,
erroneously arguing he had previously been unrepresented by
counsel. See Filing No. 82, in Case 8:12CV436. On April 21,
2014, the court denied Bremmer’s motion. See Filing No.
129, in Case 8:12CV436. Prior to trial, the court dismissed
WCI’s claims against Emerson Electric, LLC. See Filing
No. 187, in Case 8:12CV436. Bremmer testified during the
trial held on May 12, 2014. The court instructed the jury to
limit damages to those recoverable by WCI, which included
Bremmer’s medical care and diminished ability to work.
See Filing No. 212 - Final Jury Instructions, in Case
8:12CV436. The jury did not consider mental distress or pain
and suffering. The jury found in favor of WCI, by determining
Bremmer had been 49% negligent and Appleton had been 51%
negligent in causing WCI’s damages. See Filing No. 226,
in Case 8:12CV436. Although Appleton initially appealed, the
parties stipulated to the appeal’s dismissal and
Appleton satisfied the judgment. See Filing Nos. 253, 256, in
the court denied Appleton’s motion to dismiss; however,
the court allowed the defendant an opportunity to apply for
the attorneys’ fees and costs reasonably incurred by
Appleton prior to December 20, 2013, in defending the 2012
Lawsuit. See Filing Nos. 19 and 31. Appleton seeks an award
of $10, 936.34. See Filing No. 33 - Application p. 2. In
addition to facts listed above, Appleton alleges the
following additional facts:
2. On January 4, 2013, Christopher A. Sievers (Sievers)
entered his appearance as counsel for Bremmer and WCI.
3. On September 6, 2013, Defendants noticed a deposition of
Bremmer. The date and location of the noticed deposition was
agreed to by Plaintiffs’ counsel of record, Mr.
4. On October 25, 2013, Bremmer refused to appear for his
properly noticed deposition.
5. On November 11, 2013, Defendants noticed another
deposition for Bremmer.
6. Bremmer refused to appear for his second properly noticed
deposition on ...